Annals of executive overreach

August 09, 2010

Last month, a draft memo surfaced from the Department of Homeland Security suggesting ways to administratively circumvent existing law to allow several categories of illegal immigrants to avoid deportation and, indeed, for some to be granted permanent residency. Most disturbing was the stated rationale. This was being proposed "in the absence of Comprehensive Immigration Reform." In other words, because Congress refuses to do what these bureaucrats would like to see done, they will legislate it themselves.

Regardless of your feelings on the substance of the immigration issue, this is not how a constitutional democracy should operate. Administrators administer the law, they don't change it. That's the legislators' job.

When questioned, the White House played down the toxic memo, leaving the impression that it was nothing more than ruminations emanating from the bowels of Homeland Security. But the administration is engaged in an even more significant power play elsewhere.

A 2007 Supreme Court ruling gave the Environmental Protection Agency the authority to regulate carbon emissions if it could demonstrate that they threaten human health and the environment. The Obama EPA made precisely that finding, thereby granting itself a huge expansion of power and, noted The Washington Post, sending "a message to Congress."

It was not a terribly subtle message: Enact cap-and-trade legislation — taxing and heavily regulating carbon-based energy — or the EPA will do so unilaterally. As Frank O'Donnell of Clean Air Watch noted, such a finding "is likely to help light a fire under Congress to get moving."

Well, Congress didn't. Despite the "regulatory cudgel" (to again quote The Post) the administration has been waving, the Senate has repeatedly refused to acquiesce.

Good for the Senate. But what to do when the executive is passively aggressive rather than actively so? Take border security. Sen. Jon Kyl, R-Ariz., reports that President Barack Obama told him about pressure from his political left and its concern that if the border is secured, Republicans will have no incentive to support comprehensive reform (i.e., amnesty). Indeed, Homeland Security's abandonment of the "virtual fence" on the southern border, combined with its lack of interest in completing the real fence, gives the distinct impression that serious border enforcement is not a high administration priority absent some Republican quid pro quo on comprehensive reform.

But border enforcement is not something to be manipulated in return for legislative favors. It is, as the administration argued in court in the Arizona case, the federal executive's constitutional responsibility. Its job is to faithfully execute the laws. Non-execution is a dereliction of duty.

This contagion of executive willfulness is not confined to the federal government or to Democrats. In Virginia, the Republican attorney general has just issued a ruling allowing police to ask about one's immigration status when stopped for some other reason (e.g., a traffic violation). Heretofore, police could inquire only upon arrest and imprisonment.

Whatever your views about the result, the process is suspect. If police latitude regarding the interrogation of possible illegal immigrants is to be expanded, that's an issue for the legislature, not the executive.

How did we get here? I blame Henry Paulson. (Such a versatile sentence.) The gold standard of executive overreach was achieved the day he summoned the heads of the country's nine largest banks and informed them that henceforth the federal government was their business partner. The banks were under no legal obligation to obey. But they know the capacity of the federal government, when crossed, to cause you trouble, endless trouble. They complied.

So did BP when Obama summoned its top executives to the White House to demand a $20 billion federally administered escrow fund for damages. Existing law capped damages at $75 million. BP, like the banks, understood the power of the U.S. government. Twenty billion it was.

Again, you can be pleased with the result (I was) and still be troubled by how we got there. Everyone wants energy in the executive (as Alexander Hamilton called it). But not lawlessness. In the modern welfare state, government has the power to regulate your life. That's bad enough. But at least there is one restraint on this bloated power: the separation of powers. Such constraints on your life must first be approved by both houses of Congress.

That's called the consent of the governed. The constitutional order is meant to subject you to the will of the people's representatives, not to the whim of a chief executive or the imagination of a loophole-seeking bureaucrat.